*1 607 Acres, Greene decision is clear. Unless As I the court’s read (or CHM received its license for nursing homes) actually other 40, entitled additional to the date of Act it is beds effective prior 40, review under the of Act Act 593. Unless court terms itself, chooses to I held reverse feel bound what the court Greene Acres. Therefore, I dissent.
Hays, J., joins dissent. SERVICES; OF DEPARTMENT HUMAN Division of Services; Social Office of v. Sammie Term Care Long
BERRY 88-120 S.W.2d
Supreme Court of Arkansas delivered Opinion February *2 Gen., Clark, Asst. by: Knight, Att’y Steve F. Att’y William Gen., for appellant. Graves, for
Darrell appellee. M, Miller, for amicus curiae Arkansas State Martha Nurses Association. The Sammie is li- Berry, Justice. appellee, Glaze,
Tom nurse and is censed the State of Arkansas a also by this of a licensed residential care within (DHS), state. of Services appellant, Human Department through Long (OLTC), its Officeof Term Care empowered law to regulations make rules and to control residential facilities. a that certain Berry sought declaratory judgment were the OLTC regulatory provisions adopted conflict with the the Arkansas State authority granted to Board Nursing regulations Those regulate profession. govern the administration of medicine adopted by residential care facilities of such facilities. by owner-operators invalid, regulations The trial court declared the and from that judgment, We reverse. appellant brings appeal. considering regulation, When validity court must the same give regulation presumption validity Austin, would See Rowell v. 276 Ark. it a statute. (1982). regulations by
S.W.2d 531
reviewing
adoption
under its informal
a court is
agency
rule-making procedures,
limited to
whether the administrative action was
considering
arbitrary, capricious, an abuse of discretion or otherwise not
accordance with
v.
the law. Arkansas Pharmacists Assoc.
Harris,
In the present OLTC bears responsibility primary to regulate and manage long term care facilities many Arkansas. The three (1) nursing basis of facilities types are homes, (2) (3) residential care units and As adult care centers.1 noted, previously owns and operates a residential care facility. Basically, in order to admittance to qualify residential care be setting, person must and able ambulatory evacuate building under his or her own within two power minutes if an arises. The must also be emergency able person self-administer his or her own medications and not require nursing facilities, care. Unlike residential care nursing homes services for provide those need or persons who medical treatment who can no longer self-administer medications or evacuate the facility in less than two minutes.
Because persons nursing given homes are medication and treatment, medical those homes are and required to chart keep health, extensive records of each history, resident’s medical orders and physician overall medical treatment. No such require- ments are imposed upon care owners or operators. addition, nursing are homes to have pharmaceutical director, committees comprised consulting phar- macists, nurses, the director of administrator. This committee is to ensure the medications are administered being and are properly having desired results.
1 Adultcare centers are in issue in cause. this are they provide care facilities and the services
Residential homes. To aid in nursing different from those clearly provided services, monitoring effectively which are in issue (3) (4), promulgated cause and as follows: shall an or operator 3. Under no circumstances or employee solicited employee anyone operator medication, injectable to administer oral permitted any medications, ear ointments eye drops' drops, topical (both drugs). prescription non-prescription addition, 4. In' owner any operator and/or who is a licensed nurse who Facility Residential Care to a will be in viola- administers medication resident tion nursing an unlicensed home. operating contends, held, the trial court Appellee and 4 from unlawfully restrict a licensed nurse performing duties under state law as a licensed nurse and arbitrarily nurse, draw a distinction between a home health nurse and a like Berry, also to own or a residential care happens operate We disagree. terms, Provision its clear a residential merely prohibits administering from medications to operator employee *4 Thus, residents. the is directed at the purpose regulating daily of residential the operations nursing. facilities —not practice Consistent with that the that those purpose, regulation recognizes residing in facilities are the persons residential care not afforded same devices such as record- protections monitoring charting, keeping, oversight committees as are those pharmaceutical However, in persons residing nursing homes. if the condition of a in person residential care worsens to the or she no longer he point meets the of that would requirements facility, type person transferred, to a home where the necessarily nursing proper medical treatment can be extended the and where moni- person toring devices are available to measure and control treatment.
Appellee’s arguments recognize legitimate fail to the simply distinction between the nursing homes from type provided by facilities; that given by residential care neither do acknowl- they its OLTC achieve edge the valid the attempts is not (3). If Regulation appellant empowered enactment of manner, it seems regulate residential care facilities be admin- may that extended medical treatment readily apparent istered safe- monitoring such facilities without the persons guards homes. nursing
Home available to residential care resi- nursing health is dents nursing when are in need medical care. That they type However, care is extended under the supervision physician. nurse, is a is appellee Berry arguing counters that she and it needless to call on outside she can nursing when promptly same conveniently provide the care to her residents. While there is pragmatism some in what the OLTC must Berry says, nurse, also be mindful that while she well be a excellent very she is also an who has an economic the interest in owner/operator The sole facility. interest of outside home nurse, hand, health on the other is merely connection, immediate medical need of his In this patient. we would add that the record quickly in this cause would indicate that the runs an excellent and that no evidence exists actual is being conflict as a result of her present both a so, nurse the owner of the Even facility. OLTC confronted with the that such conflicts are prospects apt arise the future if it becomes common practice for residential care nurses, facilities to employ staff blurring meaningful thereby distinction between such residential care and nursing facilities homes.
Finally, we would add that the OLTC’s regulation, (7), particularly takes into account that emergency matters do occur and provides that of residential operators employees care facilities medical may administer treatment to a resident until the can be to an resident/patient transported appropriate sum, agency, promulgating 1901, was mindful of the medical needs of residents who meet instance, requirements of a residential care in every facility, required medical treatment is available to those residents. The regulation under attack in affects way no adversely *5 profession, nor does it his restrict nurse’s opportunity practice or her profession, in the situation where that nurse except unique owns, either operates, facility. or is a residential care employed by
612 indeed, date, and rare obviously To such a situation has been arise, shown a we believe the state has where that case should residential regulating for legitimate reasonable and purpose it 1901. Regulation has done under facility the regula also 4 of argues provision The appellee it in an arbitrary out is invalid because results tion set above the nursing members of distinction between equally qualified viz., who own or home health nurses nurses profession, stated, we For reasons facility. already operate recognizable for believe there is a reasonable We do treating differently. these two so-called classes of is since it omits believe worded provision poorly physicians be owners or of residential care facilities operators could administer medication such a presumably physician /owner However, no facility. and treátment to residents of his or for and while the excluding reason is offered apparent physicians, to include offers that it 4 so as appellant interprets provision regulation, within the provision physicians, proscription defective fails to mention and most for clearly physicians likely do failing to so. reasons,
For above we reverse. J., C.J., Holt, dissent. Purtle, Justice, Chief The Holt, Jr., dissenting. appellee, Jack Sammie is licensed the State of Arkansas as a Berry, nurse and is licensed has owned and such a in this state operated has served the Residential approximately eight years and Care Association’s president.
Berry sought a and 4 declaratory judgment were and in with conflict granted Nursing to the Arkansas State authority Board regulate The trial declared the nursing profession. court Yet, regulations invalid. of our court finds that the majority regulations have a valid restrict extended medical purpose —to treatment might which administered in residential safeguards facilities without the monitoring homes. which to this provisions Regulation are relevant *6 as follows:
appeal 1. by medication a resident a must Any be self-administered the resident. by 2. A resident shall be as in adminis- necessary supervised tration as described below:
a. The resident be time to take the may reminded of the medication.
b. The as regimen medication indicated the container label be read to the resident.
3. Under no circumstances shall an operator employee or anyone solicited an by employee permit- operator ted medication, any injectable administer oral medica- tions, ear eye (both ointments drops, drops topical and prescription non-prescription drugs). addition,
4. In owner a Residential operator and/or Care Facility who is licensed nurse who administers any medication a resident will inbe violation of operating unlicensed nursing home.
7. The above mentioned do not procedures apply or first aid emergency measures performed by [s], operator owner [s], of Residential Care Facili- employee [s] and/or ties. Emergencies are defined those measures necessary to prevent death or until such time that the patient trauma can be to the transported appropriate First aid measures will be defined as temporary procedures necessary relieve trauma or injury applying dressing band-aids. and/or
The declaratory judgment action Berry challenged only 4.
I agree with trial court those provisions impermissi- bly certain prevent licensed nurses from performing duties, that they arbitrarily general between nurses distinguish and those own or operate facility, particular they conflict with the OLTC’s declared health protecting long of residents term care safety facilities. a licensed that in her capacity testified facility she
nurse *7 temporary occasionally require confronted with residents ex- Berry of medication. with administration assistance the in need assistance that sometimes these plained individuals backs, to arthritis, their Gay for taking aspirin Ben applying surgery, preparing or using drops cataract eye following recent insulin shots. administering law, of supervision is to under Berry By practice her and 4 preclude a nurse. Provisions 3 physician registered her assisting despite from in the administration of medication nurse, even if she training medical and her license as a nurse, even if the registered has directions from a physician a specific nature after only temporary would be of assistance testified that Berry from her request resident assistance. assistance, could, request those same when requiring residents and not be any to administer the same medications lay person lay subject provisions regardless person to of whether that — background. had training case, of In one to the result according Berry, 4 was to to to facility that an outside had come individual to administer to first had teach insulin one of Berry residents. it. that individual how to draw and how administer insulin 4 of is Equally Berry’s testimony provision significant 1901, nurses who Regulation charges owner-operator which administer with the operation residents medications unlicensed the effect of the Berry home. that explained was associated to allow home health care provision with her the facility to drive to and administer medica- tions Nothing suggests which could not. the record there is which could be any difference in the quality assistance to a health care nurse. provided by Berry home opposed occasion, 4, notwithstanding On one provision authorized of insulin because the weather Berry’s administration anyone driving from to the prevented out A the same force and proper regulation administrative has effect as a statute enacted and is accorded the legislature
615.
445,
Austin,
Ark.
same
Rowell v.
presumption
validity.
If, however,
regulation
Arkansas State Medical 283 Ark. (1984). Association, 10 of the
In Arkansas State Nurses Arkansas challenged State Medical Board was as an unautho- rized regulate nurse attempt registered practitioners. part, the regulation limited the number of which a practitioners nurse physician could employ provided violation regulation would constitute within the “malpractice” meaning the Arkansas State Medical Practices Act. This court determined regulation that the was arbitrary on its face. Board Medical was argued Regulation 10 adopted
as a reasonable means of assuring that nurse would practitioners *8 However, adequately it clear the supervised. was that restric- tion the of number nurses failed to account for the availability of groups of physicians who could professional associations This, assure adequate supervision of several nurses. when coupled with the fact the regulation discouraged that registered nurses from becoming nurse practitioners at a time when there was a state, need for additional medical care in the demonstrated that the restrictions could not be said to be related to reasonably the their underlying Similar implementation. considerations are applicable here.
The thrust the of testimony by the director of the OLTC was provisions 3 and of Regulation 1901 provided reasonable means by which the OLTC could maintain the distinction between intermediate care facilities and residential care facili- ties, which by definition cannot house individuals who require nursing care which the includes administration of medication. The OLTC argues that effect on the nurses ability connected with residential care to practice facilities their profes- sion is merely incidental to the purpose of 4 to secure the provision health and safety long individuals term care. requiring however,
The testimony trial, at introduced makes it abun- clear that the dantly challenged regulations by adopted fall OLTC short of rational between the relationship purpose underlying implementation. in the individuals guaranteeing placement
Instead of needs—which based their medical appropriate upon the services when it limited was result intended the OLTC at issue care facilities —the provisions permitted effect have the unintended often to that result and accomplish fail who Berry for such as those by appellee individuals cared temporary term care or only need short occasionally periodic turn to lay persons assistance in the administration of medication not have the may instances or outside nurses in many administer medication medical skill to requisite properly to a threat to great have travel distances as present such time, a skilled and of the resident. At the same safety health and nurse) stands employee trained nurse (the owner-operator idle. be- 4 further in an distinction
Provision results There nursing profession. tween equally members qualified no health allowing reasonable basis for home not come medication but allow premises on the and administer such licensed nurses who to be owners operators either happen testimony light do the especially same— that same that it is for administer permissible lay persons medication. reversal, places of its support arguments
considerable care nurses the fact home health emphasis upon who travel to residential medications care facilities administer must, homes, like their or record the counterparts chart these which administration of do requirements medications — *9 placed in residential care Further apply emphasis facilities. Jim upon testimony that whereas seeks Brown medications, to administer “harmless” only aspirin similar other limit such nurses themselves medications, a grave thus health risk. presenting record an assump-
The does not the basis for such reveal, however, tion. object It does would not that the OLTC the administration of nurses of by owner-operator mediation residential care facilities those nurses were provided required keeping, storage adhere to record safety, requirements similar to In light those of home health care nurses. this testimony and in the interest health care of promoting quality residents, should, condemn the rather than nurse who to be the happens owner-operator in- such nurses to their skills in isolated permit use facility, provided their are recorded adequate activities stances — storage and implemented. administration are procedures Provisions 3 and 4 of 1901 are face. curtail the services under circum- They qualified stances where those same services are demand. restrictions themselves defeat for which were they imple- promotion of health and the testi- public safety mented — mony —and shows that the restrictions could be made completely unnecessary of record simply by storage adoption keeping requirements. Surely, regulations discourage nurses from operating residential care at a facilities time when there is a need for health care in this area. specialists sum, the provisions clearly discriminate against licensed nurse who is the owner or operator of a residential facility. She can be nothing more to her residents than innkeeper.
Purtle, J., joins this dissent.
Robert v. Calvin O’BRYANT HORN and
Horn Lumber Co.
89-20
Supreme Arkansas delivered Opinion February